Heller, Originalism, and the Revival of the Privileges or Immunities Clause

Doug Kendall

There has been a tremendous amount of attention paid recently to the conservative unrest (expressed most forcefully by Fourth Circuit Judge J. Harvie Wilkinson III) about Justice Scalia’s opinion in Heller v. District of Columbia, which Judge Wilkinson criticizes for dragging the Court into another hot button political topic (gun control) without a clear constitutional mandate. What few commentators have realized is that the next wave of Second Amendment litigation, involving challenges to state gun control laws, will raise an even more interesting question about how the provisions of the Bill of Rights are “incorporated” against the States, and provide an even greater test of conservative originalism.

Heller involved a District of Columbia statute. Because Congress controls the District’s laws, the Second Amendment applied by its own force. Virtually everyone assumes that the Court will take the next step of saying that the individual, Second Amendment right, recognized in Heller, applies also as a limit on state and local laws. Justice Scalia powerfully points in this direction in a footnote in Heller that flags this issue and undercuts the three 19th century precedents holding that the Second Amendment does not apply to state and local laws.

But if the fact of incorporation is a given (and we think it is), the method is not, and that’s where things get really interesting. Indeed, the "how" question with Second Amendment incorporation could be one of the most profoundly important questions of constitutional law decided in decades. In past cases, the Court has turned to the Due Process Clause to incorporate virtually all the rights in the Bill of Rights, but that approach does not sit well with the Constitution’s text, especially for substantive rights like the Second Amendment. Incorporation in those cases relies on the doctrine of substantive due process, which conservatives love to hate. Now some conservative lawyers are championing the Privileges or Immunities Clause as an alternative means of incorporation. The very day that the Court handed down Heller, Heller’s attorney, Alan Gura, filed a lawsuit attacking Chicago’s ban on hand guns, principally as a violation of the Privileges or Immunities Clause of the Fourteenth Amendment. Gura’s new lawsuit, not surprisingly has failed so far, but he is biding his time until he gets to the Supreme Court.

Gura is right to invoke the Privileges or Immunities Clause. The Court should rule that the Second Amendment – like the other substantive guarantees in the Bill of Rights – binds the States. And it should do so through the Privileges or Immunities Clause. The Privileges or Immunities Clause protects the substantive fundamental rights of all Americans from hostile state legislation. (For further explanation, see the first post in this series and our recent report, The Gem of the Constitution). At the very least, this means that States may not violate the fundamental constitutional rights listed elsewhere in the Constitution, such as in the Bill of Rights. As the first Justice Harlan wrote in Twining v. New Jersey -- one of his many prescient dissenting opinions of the era -- “[t]he privileges or immunities mentioned in the original Amendments, and universally regarded as our heritage of liberty from the common law, were thus secured to every citizen of the United States, and placed beyond assault by any government, Federal or state.” As Justice Harlan emphasized, “the plain words of the Constitution” dictate this protection of fundamental rights; we need not be derailed by having to show that the Due Process Clause protects substantive fundamental rights.

The debates in Congress over the Fourteenth Amendment bear this out. Senator Jacob Howard gave one of the best discussions of the Clause, and he was explicit that the Clause would require states to abide by the protections of the Bill of Rights, specifically including “the right to keep and bear arms.” Senator Howard recognized that the Supreme Court had held that the Bill of Rights did not apply to the States, and wrote the Privileges or Immunities Clause to overturn that result: “The great object of the first section of this amendment is . . . to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

The framers of the Fourteenth Amendment were deeply concerned about Second Amendment rights. The Black Codes prohibited the former slaves from having their own firearms, and some Southern plantation owners demanded that their former slaves agree to labor contracts giving up their right to bear arms. The framers of the Amendment viewed these efforts as breaches of the fundamental rights of all Americans, and meant the Privileges or Immunities Clause to invalidate them. For example, during the debates, Rep. Pomeroy viewed the right to bear arms as one of three indispensable “safeguards of liberty,” arguing that all Americans “should have the right to bear arms for the defense of himself and family and homestead.” Likewise, Rep. Raymond argued that the Fourteenth Amendment’s citizenship rights included the right to bear arms. “Make a colored man a citizen of the United States and he has every right which you and I have as citizens of the United States under the laws and Constitution of the United States. . . . He has a right to defend himself and his wife and children; a right to bear arms . . . .”

How, then, did the Supreme Court reach a contrary conclusion? In The Slaughterhouse Cases and subsequent rulings, the Court distinguished rights of state and national citizenship, and concluded that virtually all constitutional and common law rights were state rights; only rights connected to the workings of the federal government or the Union were rights of federal citizenship. In a trio of cases – United States v. Cruikshank in 1875, Presser v. Illinois in 1886, and Miller v. Texas in 1894 – the Court seized on this dichotomy to conclude that the Second Amendment does not apply to the States. As the Court wrote in Cruikshank: “The second amendment declares that [the right to bear arms] shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the federal government . . . .”

In Heller, Justice Scalia recognized these as dubious precedents that gave no real consideration to the question of incorporation, setting the stage for overruling them at a later date. But there is no reason to simply stop at these three Second Amendment rulings. The Fourteenth Amendment’s text and history point powerfully toward overruling Slaughterhouse and applying the Second Amendment to the States via the Privileges or Immunities Clause.

But notice the predicament for a conservative originalist like Justice Scalia. The only answer a committed originalist can provide to the incorporation question is incorporation through the Privileges or Immunities Clause. While Justice Scalia is a “faint-hearted originalist” -- meaning he’s sometimes willing to follow established, non-originalist precedent -- that is no answer to the question of how to incorporate because the Court will have to overrule parts of Cruikshank as well as two other very old cases to find incorporation at all.

The dilemma for conservatives is that an originalist ruling that overrules Slaughterhouse and restores the Privileges or Immunities Clause to its intended constitutional role will simultaneously undergird the Court’s existing fundamental rights jurisprudence, which has produced rulings such as Roe v. Wade. While conservatives will certainly continue to attack these rulings as illegitimate, it’s far easier to say that the entire enterprise is out of bounds (as conservatives have said for years about substantive due process).

A Supreme Court ruling that the Privileges or Immunities Clause is not a dead letter and, indeed, mandates that judges wrestle with the question of what constitute the “privileges or immunities of citizens of the United States,” unquestionably would put a stronger constitutional foundation under the Court’s rulings in cases like Roe v. Wade and Lawrence v. Texas. Judge Wilkinson’s really not going to like that.

(David Gans is Constitutional Accountability Center's Human and Civil Rights Director, Doug Kendall is CAC's President. This post is the second of a series of three posts here introducing the organization's Gem of the Constitutionreport, the first report in CAC's Text and History Narrative Series. For more on the progressive force of the Constitution's text and history, visit our blog, http://www.textandhistory.org/).

Thank god we are, seemingly, hopefully, moving towards a revivial or at least reevauluation of the privileges and immunities clause. What I wonder, though, is whether you guys agree with me that any real revival of the privileges and immunities clause should be accompanied by a serious discussion of the important way in which it should interact with the 9th Amendment? Thoughts?

How, then, did the Supreme Court reach a contrary conclusion? In The Slaughterhouse Cases and subsequent rulings, the Court distinguished rights of state and national citizenship, and concluded that virtually all constitutional and common law rights were state rights; only rights connected to the workings of the federal government or the Union were rights of federal citizenship. In a trio of cases – United States v. Cruikshank in 1875, Presser v. Illinois in 1886, and Miller v. Texas in 1894 – the Court seized on this dichotomy to conclude that the Second Amendment does not apply to the States. As the Court wrote in Cruikshank: “The second amendment declares that [the right to bear arms] shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the federal government . . . .”

Cruikshank and Presser applied the pre 14th Amendment precedent that the Bill of Rights did not apply to the states. Cruikshank sidestepped the incorporation issue by holding that the 14th Amendment did not apply to citizen (KKK) attempts to deny the Bill of Rights. Presser similarly tap danced by holding that the 14th Amendment did not protect a right to form a private militia.

Miller is useful in arguing that Cruikshank and Presser never in fact ruled on whether the 14th Amendment incorporated the Second Amendment against the states because it distinguished the holdings of Cruikshank and Presser from the issue of whether the 14h Amendment limited the power of the states. Unfortunately, the Miller court declined to rule upon the incorporation issue because the appellant had not raised it before the trial court.

In sum, there is basis to argue that the Supreme Court has never in fact ruled on the issue of whether the 14th Amendment incorporates the Second Amendment against the states. This enables a court to distinguish rather than reverse Cruikshank and Presser.

While a reversal of Slaughterhouse and restoration of the P&I Clause would enhance an incorporation argument, it probably is not necessary to accomplish the goal.

A Supreme Court ruling that the Privileges or Immunities Clause is not a dead letter and, indeed, mandates that judges wrestle with the question of what constitute the “privileges or immunities of citizens of the United States,” unquestionably would put a stronger constitutional foundation under the Court’s rulings in cases like Roe v. Wade and Lawrence v. Texas. Judge Wilkinson’s really not going to like that.

Why? The P&I Clause can be best read as incorporating the Bill of Rights against the States. That means that unenumerated rights will be guaranteed by the Ninth Amendment. The Ninth Amendment is generally limited to rights that were well established in society and law. Rights to abortion and sodomy hardly fall into that category.

A Supreme Court ruling that the Privileges or Immunities Clause is not a dead letter and, indeed, mandates that judges wrestle with the question of what constitute the “privileges or immunities of citizens of the United States,” unquestionably would put a stronger constitutional foundation under the Court’s rulings in cases like Roe v. Wade and Lawrence v. Texas. Judge Wilkinson’s really not going to like that.

Why? The P&I Clause can be best read as incorporating the Bill of Rights against the States. That means that unenumerated rights will be guaranteed by the Ninth Amendment. The Ninth Amendment is generally limited to rights that were well established in society and law. Rights to abortion and sodomy hardly fall into that category.

Question: At the time of the founding (and the 14th amendment), it was not a well established right that married women could own property independent of their husband. If a state decided today to pass a law that said a married woman forfeits all marital and pre-marital property at the time of the union, and in cases of divorce, the woman has no title to any of the marital or her pre-marital property, would she be able to invoke any federal constitutional rights, claiming the law is unconstitutional? See http://en.wikipedia.org/wiki/Coverture (cites for my claims – cool!)

By being pretty much the same court that was responsible for Dred Scott, and rightly recognizing that the P&I language of the 14th amendment was a direct rebuke to that ruling.

It was stark bad faith, a deliberate decision to gut an amendment they didn't like. We really should not pretend Slaughterhouse rests on respectable foundations. It's long since time that the Supreme court admitted that some of it's precious precedents are a result of deliberate bad faith, and deserve nothing but to be overturned as speedily as possible.

"The Privileges or Immunities Clause protects the substantive fundamental rights of all Americans from hostile state legislation."

I'm not sure what "fundamental" means here--is it morally fundamental, or fundamental in terms of a right's rootedness in tradition? Is the fact that a right is mentioned in the Bill of Rights dispositive of fundamentality, or merely a strong indication? (Should the 27A be incorporated, so that state legislators couldn't pass themselves retroactive salary increases?)

Put another way, is the proposition "The Privileges or Immunities Clause incorporates the Bill of Rights" analytically true--true by definition--or it is a synthetic proposition--true or false in virtue of the way the world is, e.g., in virtue of whether certain rights have traditionally been respected by the states, or in virtue of whether these rights are, in point of moral fact, very important rights? (For a slight bit more on analytic & synthetic, see here at 18.)

The bit in Harlan's Twining dissent about "[t]he privileges or immunities mentioned in the original Amendments, and universally regarded as our heritage of liberty from the common law" seems a bit unclear between the incorporation-by-definition and incorporation-in-virtue-of-rootedness-in-tradition views.

The remedy in your scenario is the enumerated Equal Protection Clause. Thus, there is no need to troll for unenumerated rights through the Ninth Amendment.

Are you suggesting the original understanding of the 14th amendment, at the time it was ratified, was that it granted women such rights? If so, why did coverture exist well into the 20th century? If not, how did the understanding of the 14th amendment evolve to encompass married women's property rights?

You are proceeding down the wrong road in your weak attempt to tweak me and justify legal fictions like constitutional "rights" to abortion or sodomy.

I am a textualist. Equal in the EPC means equal. There is no need to delve into the original intent of the 14th Amendment concerning coverture.

As for why the EPC was not enforced against coverture for so long, you can look to the courts. The First Amendment was not truly enforced until the early 20th Century and the Second Amendment had to wait until the 21st Century.

But "protection of the laws" means protection--i.e., security against violence and the right to a remedy. See here and here. The earliest 14A sex-equality cases at the Supreme Court--Bradwell and Minor--were P/I cases, not EPC ones.

You are proceeding down the wrong road in your weak attempt to tweak me and justify legal fictions like constitutional "rights" to abortion or sodomy.

I am a textualist. Equal in the EPC means equal. There is no need to delve into the original intent of the 14th Amendment concerning coverture.

As for why the EPC was not enforced against coverture for so long, you can look to the courts. The First Amendment was not truly enforced until the early 20th Century and the Second Amendment had to wait until the 21st Century.

So why doesn't the Equal Protection Clause mandate the result in Lawrence? Was there not unequal protection present there?

At a recent federalist society event, Justice Scalia clarified his use of the term faint hearted originalist. He claimed that this phrase referred to his reluctance to allow corporal punishment and the like despite the fact that the original meaning of "cruel and unusual" would support it.

His explanation for respecting incorporation was "I am an originalist, not a nut." He laid out a series of factors for whether or not he would respect a precedent, including: how wrong a decision was, how old a decision was, reliance interests and whether or not the decision is capable of being applied in a judicial manner.

Video and audio from the speech are available at:http://www.fed-soc.org/publications/pubid.1193/pub_detail.asp

So why doesn't the Equal Protection Clause mandate the result in Lawrence? Was there not unequal protection present there?

Sodomy is not similarly situated with sexual intercourse.

Five of the Lawrence majority declined the EPC route as a dead end and instead used that constitutional oxymoron "substantive due process" to effectively legislate a right to sodomy into the Constitution.

Only O'Connor attempted to argue that limiting criminal penalties to homosexual sodomy violated the EPC. However, as Scalia properly noted, the statute was not limited to a particular sexual orientation and covered all people who engaged in the particular act.

Scalia's dissent from Lawrence was particularly withering as befits one of the most egregious examples of outlaw judicial legislation.

In a democracy, the proper venue for abandoning stupid and archaic laws is in the elected legislature.

I thought you were a textualist, and equal means equal. Where is the 14th amendment caveat that equal does not mean equal when it comes to where things get inserted?

Five of the Lawrence majority declined the EPC route as a dead end and instead used that constitutional oxymoron "substantive due process" to effectively legislate a right to sodomy into the Constitution.

Only O'Connor attempted to argue that limiting criminal penalties to homosexual sodomy violated the EPC.

Ahh, but i said "why doesn't the Equal Protection Clause mandate the result in Lawrence?", not the reasoning of Lawrence. I was specifically talking about O'Connor's analysis, which is dead-on. However, as Scalia properly noted, the statute was not limited to a particular sexual orientation and covered all people who engaged in the particular act.

He said no such thing, and for good reason - this is completely factually incorrect. He even admitted the legality of the actions depended on what sex the other partner was:"To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women.

So he admits the law does not equally protect homosexuals as it does heterosexuals, as heteros can do any of the acts listed in the statute without it being a crime.

So what's his logic for why this is not an equal protection violation? Contrary to your assertion that it was withering, I found Scalia's dissent (on EPC) to be one of the most logic-free, infantile, and underwhelming in his career. Scalia's entire dissent was based entirely on circular logic. Here is his justification for why the Texas statute was not an equal protection violation:But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex."

So, the logic is the Texas statute just can't be an equal protection violation, because limiting civil marriage to hetrosexuals likewise just can't be an equal protection violation. That's it - the entire width and breadth of his reasoning. One must be true because he simply, blatantly, just assumes the other must be true.

In fact, Scalia's dissent is the finest encapsulation of why there should not be such discriminatory laws, and why those seeking to continue discriminating against their fellow citizens in this manner have nothing but hollow reasoning to support it.

Of course, as a textualist, I don't see how one could possibly say both a ban on same sex marriage and the Texas statute don't prima facia violate equal protection. The acts proscribed by the Texas statute are perfectly legal if done with a member of the opposite sex. One group's activities are protected, while another group's engagement in the same activity is criminal. So, if equal means equal, how is the Texas statute constitutional?

I would welcome an overturning of the Slaughterhouse cases, because P&I would be a much stronger basis for civil rights laws than the commerce clause (Heart of Atlanta Motel), and a much more historically valid view of the clause, as the original post discusses. However, under a modern-day resurrection, would the reach of the P&I clause be limited by the congruence and proportionality test of City of Bourne v. Flores? That test is pernicious.

Fabulous ... you might want to check out "A New Birth of Freedom" by Charles Black Jr. It's a nifty little book that does just that.

By being pretty much the same court that was responsible for Dred Scott, and rightly recognizing that the P&I language of the 14th amendment was a direct rebuke to that ruling.

No one was on both courts. The justices were appointed by Lincoln and Grant. And, a ruling about health regulations for slaughterhouses (their lead advocate a former member of the Confederacy) was not much about Dred Scott. If anything, supporting the local regulations went the other way.

The SC did a poor job of honoring the 14A in cases like the Civil Rights Cases, but staying away from local health regulations was not a big problem.

The Court recognized the 14A ensured black citizenship. They also was wary about opening a can of worms in regards to a broad adjudication of "liberty" and such. Justice Scalia still is wary.

As shown in Troxel v. Granville, he doesn't want to use the P&I either. CJ Roberts and Alito are pragmatic enough not to care about the technical originalist issue and honestly nor will many 2A supporters.

Note the dissents didn't just give real teeth the P&I. They wanted to strike down the health law as an illegal monopoly. In fact, the lead dissenter, Justice Field had a poor civil rights record, except in regard to Chinese (for special reasons there).

Looked at in context of the times, the move toward federalization of rights writ large was a grand move and a major change that went much further than protecting the rights of blacks. Many who voted for the 14A probably didn't think think it would mandate incorporation. The ruling reflected this. This is the "reason" for the ruling.

In time, as with the 1A etc., real teeth was given to provisions to match the expressive language and the spirit of some of the framers. This is fine. And, the authors have a good argument as to the P&I overall, even though substantive due process was in the air even then, and dissenting Justice Bradley himself clearly suggested as much.

But, to suddenly think -- as compared to freedom of speech or whatever -- the Court would suddenly shift gears and use the P&I? Naive. In fact, since the DPC speaks of "persons" and "liberty" sounds more powerful than "privilege," rhetorically it might not even be seen as ideal.

BTW, one privilege and immunity is protection of the government. If the states cannot adequately secure it, federal law would be justified. This would deal with certain "private" action problems the Supremes found in recent years when striking down certain national laws.

A true originalist would know this, I reckon. In fact, a few federal judges cited just this reasoning in the 1870s. Maybe, reference to history and text alone won't solve the problem?

1) You'll find that married women's rights actually came up in the Congressional debates, with opponents to the 14th Amendment arguing that if you treated blacks and whites equally with regard property, you'd have to treat married women equal with men or with single women and if you gave blacks the vote (and whether the 14th did this was disputable, hence the 15th), then you'd have to let women vote.

2) The Slaughterhouse/Cruikshank Court was not entirely similar to the Dred Scott Court. In particular, the CJ had turned over. BUT the majority was "Andrew Johnson Republicans," inclined to value reconciliation with the majority white former Confed. population much, much higher than protection of the freedmen. The interpretative method was one too often seen -- to paraphrase, "we CAN'T BELIEVE that anybody meant to do this, and thus hold that this result could only be justified if the text were 110% clear, and if we can find any tiny ambiguity, we are free to say it didn't happen." One of the framers of the Amendment quipped that when Slaughterhouse came down, the men who had voted for the Amendment received information about their intentions that came as a surprise to them, and justified the concerns they had had about confirming Chief Justice Waite.

Well said Brett. And just for a reminder of what CJ Taney actually said in his majority opinion in Dred Scott as to what were the privileges and immunities of American citizens...

"For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [p417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."